[Cite as Bringman v. Bringman, 2016-Ohio-7514.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WILLIAM P. BRINGMAN : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 16CA01
:
BARBARA J. BRINGMAN :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Domestic Relations
Division, Case No. 13DV02-0038
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: October 27, 2016
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
WILLIAM BRINGMAN, PRO SE
13 East College St.
Fredericktown, OH 43019-1192
Knox County, Case No. 16CA01 2
Delaney, J.
{¶1} Plaintiff-Appellant William P. Bringman appeals the judgment entries of the
Knox County Court of Common Pleas, Domestic Relations Division, filed on January 5,
2016.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant William P. Bringman (“Husband”) and Defendant-
Appellee Barbara J. Bringman (“Wife”) were married on October 15, 1977. Husband filed
a complaint for divorce without children on February 28, 2013. Wife, represented by
counsel, filed an answer to the complaint on March 28, 2013.
{¶3} The trial court granted Wife’s counsel leave to withdraw on July 22, 2013.
{¶4} The matter was set for trial on November 25, 2013. The trial was continued
to April 17, 2014.
{¶5} The trial on Husband’s complaint for divorce went forward on April 17, 2014.
Wife did not appear for trial.
{¶6} On April 17, 2014, the trial court issued a “Judgment Entry, Decree of
Divorce.” In the entry, the trial court ordered that the marital residence and marital
household goods were to be sold at public auction, “over which sale the court retains
jurisdiction for purposes of this decree.” (Judgment Entry, Decree of Divorce, April 17,
2014). The proceeds of the sale were to satisfy the marital indebtedness, including
additional 2012 income taxes. The trial court held, “[i]f there is no such deficiency owed
or there is an excess of said proceeds left after the satisfaction of said deficiency, said
amount is awarded to Defendant free and clear of any claims of Plaintiff.” (Judgment
Entry, Decree of Divorce, April 17, 2014). The trial court did not award spousal support
Knox County, Case No. 16CA01 3
and did not retain jurisdiction over that issue. The trial court did not include Civ.R. 54(B)
language designating the judgment entry a final appealable order. Husband and Wife did
not appeal the April 17, 2014 judgment entry.
{¶7} After the judgment entry of divorce, the trial court issued numerous post
decree orders regarding the sale of the marital home at auction. The trial court found Wife
was not complying with the orders of the court as to the auction of the marital home. The
marital home and contents were sold at auction on April 25, 2015.
{¶8} On July 13, 2015, the trial court issued a post decree ordering finding that
because the marital home and contents were sold, it was necessary for the trial court “to
make an equitable distribution of the net marital assets and pursuant to that effort the final
decree values thereof need to be determined.” (Post Decree Order, July 13, 2015). A
hearing was set for August 14, 2015 for the purpose of distributing the proceeds from the
sale of the marital home.
{¶9} At the hearing, attorneys Steven McCann and Clinton Bailey appeared on
behalf of Wife. They informed the trial court that pursuant to the orders of the Knox County
Court of Common Pleas, Probate Division, McCann was serving as Wife’s court
appointed guardian of her person and estate and Bailey was Wife’s court appointed
attorney. Wife was declared incompetent on August 11, 2015. Bailey filed a notice of
appearance on September 25, 2015.
{¶10} The trial court issued its judgment entry on August 17, 2015. The judgment
entry stated in pertinent part:
Based upon their recent appointment to assist [Wife]. Mr. Mc[C]ann and Mr.
Bailey also requested time to review the history of this action before the
Knox County, Case No. 16CA01 4
Court disposes of the case. The parties agreed that a full resolution of a
disbursement of the Home Funds, as well as the remainder of the marital
assets to be disbursed, and a final resolution of this action shall be set for
hearing on September 28, 2015, at 1:00 pm.
***
4. Mr. Mc[C]ann and Mr. Bailey shall have until the time of the hearing on
September 28, 2015, to review the case file and take any further action with
respect to this matter as they deem appropriate based upon their review.
{¶11} The trial court continued the September 28, 2015 hearing to October 14,
2015.
{¶12} On October 13, 2015, court-appointed counsel for Wife filed a motion for
reconsideration pursuant to Civ.R. 54(B) or in the alternative, Civ.R. 60(B)(5). Wife
requested the trial court reconsider its determination of the marital and separate property.
Wife asked the trial court to determine whether mortgage payments upon what Husband
claimed to be separate property should have been counted as marital property. Wife
claimed that upon investigation, it was determined that Husband made mortgage
payments during the marriage in the amount of $476,936.99.
{¶13} The trial court issued a judgment entry on October 14, 2015 stating that
while the matter was before the court for finalization of the divorce case, Wife filed a
motion for reconsideration. The trial court gave Husband time to respond to the motion
and ordered the parties to mediation.
{¶14} Husband filed a motion to dismiss and a response to the motion for
reconsideration.
Knox County, Case No. 16CA01 5
{¶15} On November 25, 2015, counsel filed a motion to substitute McCann, as
guardian of the person and estate of Wife, as the defendant in the divorce case.
{¶16} On January 5, 2016, the trial court granted the motion for substitution. The
trial court also granted Wife’s motion for reconsideration. The trial court found the April
17, 2014 judgment entry was not a final order and therefore the court could reconsider
matters brought the trial court’s attention as ordered in the August 17, 2015 judgment
entry.
{¶17} Husband filed a notice of appeal of the judgment entries on January 25,
2016.
{¶18} The Fifth District Court of Appeals was notified that Wife passed away on
March 23, 2016. Court-appointed counsel for Wife filed a notice of death and suggestion
of stay with this Court on April 13, 2016. Counsel filed a motion to withdraw on May 19,
2016. On June 1, 2016, we granted the motion to withdraw. The matter now proceeds on
appeal.
ASSIGNMENTS OF ERROR
{¶19} Husband raises two Assignments of Error:
{¶20} “I. THE TRIAL COURT ERRED IN RENDERING ITS JUDGMENT OF
JANUARY 5, 2016 PERTAINING TO THE SUBSTITUTION OF PARTIES.
{¶21} “II. THE TRIAL COURT ERRED IN RENDERING ITS JUDGMENT ENTRY
OF JANUARY 5, 2016 PERTAINING TO THE MOTION FOR RECONSIDERATION.”
Knox County, Case No. 16CA01 6
ANALYSIS
Was the April 17, 2014 Judgment Entry of Divorce a Final Order?
{¶22} We must first address the threshold issue of whether the judgment entry
appealed is a final, appealable order. Generally, motions for reconsideration to a trial
court are only permissible to obtain relief from a non-final order. Frabott v. Swaney, 5th
Dist. Delaware No. 13 CAE 05 0047, 2013-Ohio-3354, ¶ 17 citing McGee v. Lynch, 6th
Dist. Erie No. E–06–063, 2007–Ohio–3954, ¶ 27. The Ohio Civil Rules do not provide for
motions for reconsideration after a final judgment. Id. Therefore, such a motion is
considered a nullity. Pitts v. Dept. of Transportation, 67 Ohio St.2d 378, 423 N.E.2d 1105
(1981).
{¶23} Wife filed a motion for reconsideration of the April 17, 2014 judgment entry
of divorce. The issue is whether the April 17, 2014 judgment entry of divorce was a final
order.
{¶24} Appellate courts have no “jurisdiction to review an order that is not final and
appealable.” Oakley v. Citizens Bank of Logan, 4th Dist. No. 04CA25, 2004–Ohio–6824,
¶ 6; citing Section 3(B)(2), Article IV of the Ohio Constitution; General Acc. Ins. Co. v. Ins.
Co. of N. America, 44 Ohio St.3d 17, 540 N.E.2d 266 (1989); Noble v. Colwell, 44 Ohio
St.3d 92, 540 N.E.2d 1381 (1989). Further, “[a] trial court's finding that its judgment is a
final appealable order is not binding upon this court.” In re Nichols, 4th Dist. No. 03CA41,
2004–Ohio–2026, ¶ 6; citing Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of
Edn., 87 Ohio App.3d 840, 843, 623 N.E.2d 232, fn. 4 (1993); citing Pickens v. Pickens,
4th Dist. No. 459, 1992 WL 209498 (Aug. 27, 1992). This court has “no choice but to sua
Knox County, Case No. 16CA01 7
sponte dismiss an appeal that is not from a final appealable order.” Id. at ¶ 6, citing
Whitaker–Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 280 N.E.2d 922 (1972).
{¶25} To be appealable, an order must be a final order, within the meaning of R.C.
2505.02. “An order is a final order that may be reviewed, affirmed, modified, or reversed,
with or without retrial, when it is * * * [a]n order that affects a substantial right in an action
that in effect determines the action and prevents a judgment” or “[a]n order that affects a
substantial right made in a special proceeding[ .]” R.C. 2505.02(B). “A final order * * * is
one disposing of the whole case or some separate and distinct branch thereof.”
Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971). An order
adjudicating “one or more but fewer than all the claims or the rights and liabilities of fewer
than all the parties must meet the requirements of R.C. 2505.02 and Civ. R. 54(B) in order
to be final and appealable.” Noble at syllabus.
{¶26} In Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16,
¶ 15, the Supreme Court outlined the requirements of a final order in divorce proceedings:
Civ.R. 75(F) prohibits a trial court from entering a final judgment unless (1)
the judgment divides the parties' property, determines the appropriateness
of an order of spousal support, and allocates parental rights and
responsibilities, including the payment of child support, or (2) the judgment
states that there is no just reason for delay and that the court lacks
jurisdiction to determine any issues that remain.
Bibbee v. Bibbee, 4th Dist. Athens No. 15CA38, 2016-Ohio-5188, ¶ 22.
{¶27} Until a domestic relations court has fully disposed of all marital property and
separate property, the judgment entry of divorce is not final and is necessarily subject to
Knox County, Case No. 16CA01 8
modification or reconsideration. Bencin v. Bencin, 9th Dist. Medina No. 14CA00063-M,
2016-Ohio-54, ¶ 8 citing Civ.R. 75(F); See also Bibbee v. Bibbee, 4th Dist. Athens No.
15CA38, 2016-Ohio-5188, ¶ 22. Further, a trial court must value the parties’ property
before distributing it. Bibbee, 2016-Ohio-5188 at ¶ 24.
{¶28} A review of the record in this case shows the April 17, 2014 judgment entry
was a final order pursuant to Civ.R. 75(F). In the judgment entry of divorce, the trial court
disposed of the marital and separate property. It ordered the sale of the marital home and
contents at auction where the proceeds of the sale were to be used to satisfy the marital
indebtedness, including additional 2012 income taxes. The trial court held, “[i]f there is no
such deficiency owed or there is an excess of said proceeds left after the satisfaction of
said deficiency, said amount is awarded to Defendant free and clear of any claims of
Plaintiff.” (Judgment Entry, Decree of Divorce, April 17, 2014). The judgment entry stated
the trial court retained jurisdiction of the sale of the marital home and its contents.
{¶29} A review of the judgment entry of divorce shows that the trial court disposed
of all marital and separate property. The sale of the martial home and its contents was
ordered to effectuate the distribution of the marital assets. Accordingly, pursuant to Civ.R.
75(F), the April 17, 2014 judgment entry of divorce was a final order.
The Trial Court Should Have Considered Civ.R. 60(B)
{¶30} In her October 13, 2015 motion for reconsideration, Wife argued the trial
court should vacate the April 17, 2014 judgment entry pursuant to Civ.R. 54(B), or in the
alternative, Civ.R. 60(B)(5). The trial court considered Wife’s motion under Civ.R. 54(B)
because it determined the April 17, 2014 judgment entry of divorce was not a final order.
Knox County, Case No. 16CA01 9
Husband argues in his second Assignment of Error that the trial court erred in granting
the motion for reconsideration. We agree in part.
{¶31} As stated above, we find the April 17, 2014 judgment entry of divorce was
a final order. Civ.R. 60(B), by its own terms, applies only to a final judgment, order, or
proceeding. Faraj v. Qasem, 8th Dist. Cuyahoga No. 103374, 2016-Ohio-3261, ¶ 7. The
Civil Rule states, “[o]n motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or proceeding * * *.” Ohio
Civ.R. 60. Accordingly, the trial court should have considered Wife’s alternative argument
that the trial court should vacate the April 17, 2014 judgment entry of divorce pursuant to
Civ.R. 60(B).
{¶32} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:
“(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief
under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be
timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.2d 113 (1976), paragraph two of the syllabus. A failure to establish any one of the
three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v. Adams,
36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Argo Plastic Prod. Co. v. Cleveland, 15
Ohio St.3d 389, 391, 474 N.E.2d 328 (1984).
{¶33} Wife argued the trial court should vacate the judgment pursuant to Civ.R.
60(B)(5). Civ.R. 60(B)(5) allows the trial court to relieve a party from a final judgment for
“any other reason justifying relief from the judgment.” Civ.R. 60(B)(5) operates as a catch-
all provision and “reflects ‘the inherent power of a court to relieve a person from the unjust
operation of a judgment.’ “ Maggiore v. Barensfeld, 5th Dist. Stark No. 2011CA00180,
Knox County, Case No. 16CA01 10
2012–Ohio–2909, ¶ 35 citing Dutton v. Potroos, 5th Dist. Stark No. 2010CA00318, 2011–
Ohio–3646, at ¶ 49. It is reserved for “extraordinary and unusual case[s],” Myers v. Myers,
9th Dist. Summit No. 22393, 2005–Ohio–3800, at ¶ 14, and “is not a substitute for the
enumerated grounds for relief from judgment[.]” Id.
{¶34} We sustain in part Husband’s second Assignment of Error that the trial court
erred in granting the motion for reconsideration because the April 17, 2014 judgment entry
of divorce was a final order. The January 5, 2016 judgment entry granting the motion for
reconsideration is vacated. However, because Wife raised the issue of Civ.R. 60(B) to
the trial court, we overrule in part Husband’s second Assignment of Error and remand the
matter to the trial court to consider the October 13, 2015 motion as a motion for relief from
judgment.
The Motion for Substitution is Moot
{¶35} Husband argues in his first Assignment of Error that the trial court erred in
granting Wife’s motion for substitution.
{¶36} On November 25, 2015, counsel filed a motion to substitute McCann, as
guardian of the person and estate of Wife, as the defendant in the divorce case. On
January 5, 2016, the trial court granted the motion for substitution.
{¶37} This Court was notified that Wife passed away on March 23, 2016. Upon
Wife’s passing, her court-appointed attorney moved to withdraw from representing Wife
in the appeal. We granted the motion. There has been no further information provided to
this Court as to the status of the underlying proceedings in the Knox County Court of
Common Pleas, Domestic Relations Division, based on Wife’s death.
Knox County, Case No. 16CA01 11
{¶38} Accordingly, based on Wife’s death, we find Husband’s Assignment of Error
as to the motion for substitution to be moot.
CONCLUSION
{¶39} Plaintiff-Appellant’s appeal of the January 5, 2016 judgment entries of the
Knox County Court of Common Pleas, Domestic Relations Division is reversed and the
matter remanded for further proceedings consistent with this Opinion and law.
By: Delaney, J.,
Gwin, P.J. and
Wise, J., concur.